Can an AI be an inventor or an author?

Despite the hype, there have been many amazing breakthroughs in artificial intelligence in recent years. Among these, the capability of AI to automatically create and design products with little or no supervision, and to generate original content, continues to grow. This has important implications for intellectual property regulation and enforcement.

Patents

It is not too much of a stretch of the imagination to foresee the day when an AI, simply at the press of an ‘enter’ key, creates a new and innovative device or process. The invention therefore satisfies the main requirements for patent protection. But who is the inventor? Is it the AI, or the person who wrote the AI algorithm, or the person who exerted all that intellectual effort in pressing the key?

Indeed, some would argue that that day is already here. As part of the Artificial Inventor Project, patents for two inventions—a warning light and a food container—were filed in the UK, US, and the European Patent Office (EPO) on behalf of Stephen Thaler, who is CEO of a company called Imagination Engines. The inventor listed in the patent applications is Dabus AI, an AI system built by Thaler. Dabus AI is reported to have come up with the innovations after being fed general data about many subjects. According to its inventors, it ‘relies upon a system of many neural networks generating new ideas by altering their interconnections. A second system of neural networks detects critical consequences of these potential ideas and reinforces them based upon predicted novelty and salience.’

An “inventor” is defined in UK patent law as the “actual deviser of the invention” and, in the equivalent US legislation, as the “individual” who invented/discovered the subject matter of the invention. In October last year (in response to the UK patent applications with Dabus AI as the inventor), the UK IPO quietly updated its manual of practice for UK patent examiners to add that “An AI inventor is not acceptable as this does not identify ‘a person’ which is required by the law.” In the US, the US PTO has still to issue its first office action for the Dabus AI patent applications.

Just before last Christmas, the EPO refused its two Dabus AI patent applications. After hearing the arguments of the applicant in non-public oral proceedings on 25 November, the EPO refused the applications on the grounds that they do not meet the requirement that an inventor designated in the application has to be a human being, not a machine. A reasoned decision has just been released. Therefore, like the UK, the applications were rejected on the ‘technicality’ that the relevant law ‘suggests’ (but by no means is explicit) that the inventor must be human. In reality, the drafters of the 1977 UK Patents Act probably couldn’t even have conceived the possibility of a non-human inventor and so certainly did not intend to exclude it.

A related issue is ownership of the patent rights. These rights first belong to the inventor. Under the right circumstances, the rights are automatically transferred to the inventor’s employer. Otherwise, a human inventor has the legal capacity to assign the rights to another party. But an AI is neither employed (in the legal sense) or has the required legal capacity to own property.

It is notable that patent rights can be owned by any legal person, which includes (non-human) corporations and registered companies. In the UK, a foreign entity can own patent rights if it is a legal entity under a foreign law recognised by the UK. In 2017, Sophia the robot was granted Saudi Arabian citizenship, becoming the first robot ever to have a nationality. Many experts have stated that Sophia is no more than a glorified chatbot and so she is unlikely to come up with any new inventions. But, in principle, could Sophie own patent rights?

Copyright

Many reputable media organizations including The New York Times, Associated Press, Reuters, and The Washington Post already use AI to generate news content. An AI called AIVA specializes in symphonic music composition and became the world’s first virtual composer to be recognized by a music society. Christie’s recently sold its first piece of AI generated art for $432,500. All of these works are traditionally subject to copyright, with rights being assigned to the author of the work. But can an AI be an author?

The UK Copyright, Designs and Patents Act 1988 states that, where these works are computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. This provision has yet to be properly tested, and the author could be taken to be the person who operates the computer and/or the person who programmed the computer. In one case, the author of computer-generated bingo sheets was held to be the programmer.

In 2014, the US Copyright Office expressly established that copyright can only protect original works of authorship created by a human being, excluding works created by “nature, animals, or plants”. It may be that an infinite number of monkeys could produce many original works as well as the complete works of Shakespeare, but they could not own the copyright.

However, the USPTO is currently seeking opinions from the public on this issue. It has set thirteen specific questions which start off by asking if output made by AI without any creative involvement from a human should qualify as a work of authorship that’s protectable by US copyright law. If not, then what degree of human involvement “would or should be sufficient so that the work qualifies for copyright protection?” Earlier this year, the office similarly asked for public opinion on AI and patents. So we may see changes to US policy in the near future.

In China, a court ruled this month that an article generated by AI is protected by copyright. The Chinese firm Tencent has published content produced by automated software called Dreamwriter, with a focus on business and financial stories. The court found that the article’s articulation and expression had a “certain originality” and met the legal requirements to be classed as a written work and thus qualified for copyright protection.

The Future

The law, and intellectual property law in particular, has always struggled to keep up with technological advances. But keep up it must. It seems that certain countries, such as China and perhaps the US, are prepared to be bolder or at least consider the issue. But it could be argued that the UK and the EPO have missed an opportunity to adapt to the new world order.